Institutional Vigilantism in the Academy: The Policing of Private Activities by Universities

2019 Essay Contest Winner

Vivian Sim

Cancel culture is a movement that promotes the aggressive boycott of an entity – a person, group, corporation, etc. – that has been accused of a social offence, and university administrators increasingly enable it. Such social offences may be alleged to have occurred decades ago, and they may even be as trivial as a single social media post, and yet sentences handed down by the kangaroo court can be as serious as dismissal from work or revocation of university acceptance. These offences often amount to little more than exercises of freedom of expression or association, and yet they bear heavier sentences than many summary criminal offences. Herbert Morris suggested that one of the functions of punishment is to pay a debt so that “life can go on”.(1)

Not so with cancel campaigns. Cancel campaigns go beyond denouncing singular actions to the extreme of denouncing people entirely; there is no sense of proportionality in the chaos that ensues from mob trial. And yet, universities increasingly respond to public upset by applying academic sanctions to students for their conduct while in spaces and roles that are altogether unaffiliated with the university. Though complainants may feel a perverse sense of vindication when their crusade against a person results in the loss of someone’s livelihood, academic career, and personal relationships, the university doesn’t genuinely validate the complainants’ outrage. As a symptom of the corporatization of public institutions, public universities show more concern for their image than the public interest.

It’s no secret that the cost of education in Canada is rising. Less obvious is that the cost of education takes not only the form of tuition, but also of compelled speech and behaviour from students. Student Codes of Conduct are being reinterpreted and even rewritten in ways that carry strong political undertones and expand their jurisdiction off campus. Key issues underlying the policing of private activities by universities stem from (1) double jeopardy, (2) jurisdictional overreach, (3) lack of due process protections, (4) partisan influence, (5) invasion of privacy, and (6) infringement of individual freedoms. Social offences that transpire off-campus are often addressed by law enforcement. The Criminal Code(2) categorizes offences by the interests they were drafted to protect: private property, public order, security of the person, and bodily integrity, among others. The principle of proportionality that is embedded in criminal law promotes penalties that reflect the culpability of the offender and the severity of the crime. The criminal justice system is designed to deliver penalties in a measured manner, and additional disciplinary action taken by extrajudicial means can offset that careful balance.

The University of British Columbia recognized this when it refused to sanction a student who committed theft in the Vancouver Stanley Cup riot off-campus in 2011.(3) Our elected, representative government has identified theft as a crime that warrants punishment. However, the university is not the institution authorized or equipped to deliver that punishment, either in full or in part. In fact, the proposition of expulsions or lesser barriers to study as forms of punishment for criminal offences is completely counterintuitive to rehabilitative models. The criminal justice system promotes participation in work and school to encourage prosocial behaviour, therefore academic sanctions for criminal offences are both counterproductive to the objectives of the justice system and prone to disproportionality. To imply that a single non-violent offence, especially one as common as petty theft, should disqualify one from obtaining a post-secondary education is absurd. Such an assertion is blind to the latent social issues involved in the commission of many crimes, and justifies the continued marginalization of underprivileged groups.

It is the role of the State and not the university to define and denounce social offences. While the university relies more narrowly on mechanisms of retribution, denunciation, and incapacitation, the State has at its disposal restorative mechanisms promoting rehabilitation and restitution. While the criminal justice system has its flaws, it at least is accountable for social outcomes and purpose-built with due process protections. The university protects its brand. It has an interest in distancing itself from controversy, which it achieves by appeasing the mob at the expense of the individual’s rights and liberties. The State is accountable to society for a broad range of policy goals, while the university has a more narrow set of interests and lacks representative character. For the university to claim a legitimate right to impose its own parallel sentencing framework is institutional vigilantism. The justice system holds rightful jurisdiction over criminal matters, and it alone is equipped with the appropriate procedural framework and investigative resources to deal with offences. It imposes a fair burden of proof, and as opposed to administrative tribunals, its courts provide the safeguards of appeal and judicial independence.

The value of privacy in Canadian society is captured by the words of legislators and judges alike. It underlies s. 8 of the Charter,(4) and it continues to be upheld by the courts, as illustrated by the recent creation of the tort of intrusion upon seclusion in Jones v Tsige (2012).(5) Universities find themselves in a catch-22 of sorts in penalizing private activity. In order to reasonably punish any behaviour, a certain standard of proof must be met. Universities can, in the process of investigating off- campus misconduct, either (1) rely on partial or absent evidence, or (2) self-proclaim a right to surveillance – access to things like text conversations, photos, videos, and audio recordings from students’ private lives. The former is procedurally unfair, and the latter runs contrary to reasonable expectations of privacy. As compared to criminal proceedings, misconduct proceedings can compel parties to participate in inquiries with a far lower evidentiary burden. If an offence is not of the nature and severity of one that would be addressed criminally, then in many cases it is probably better described as an exercise of individual freedoms. If it is criminally punishable, then it should be left to the criminal justice system and the criminal justice system alone.

The policing of private events by public universities is a practice that should concern anyone who embraces education as a human right. It should elicit suspicion from anyone who believes that institutions with weaker investigative resources than law enforcement should not be applying sanctions more aggressively than the State. It should draw criticism from anyone who is wary of the corporatization of public universities, especially when public funds are syphoned to institutions with increasingly private character. It’s an affront to intellectual freedom that the imagined right not to be offended is ever allowed to override privacy interests and constitutionally-recognized freedoms of expression and association. Some degree of disciplinary action is necessary to maintain the productivity and integrity of the institution. However, the conduct that falls within the purview of academic sanctions should be construed as narrowly as possible.

Academic dishonesty such as plagiarism, for instance, runs completely counter the purpose of evaluations, and is a valid ground for discipline. The disruption of lectures and professional activities also prevents the university from fulfilling its purpose and constitutes a reasonable ground for academic discipline. Posts on social media that express dissatisfaction with or a dislike for faculty are not appropriate grounds for discipline.(6) It would be an abuse of power, and akin to punishing customers for leaving honest bad reviews. Enrolment in a public university is not a waiver of Charter rights. A student’s engagement in subjectively unpalatable discourse or conduct at a private event falls well outside of the business of university administrators, especially since distastefulness is a culture-laden and loosely defined concept. Such actions are not held to be contraventions of specific, descriptive provisions of university policies. Rather, they are framed as offending general principles, which raises further concerns of transparency and excessive discretionary authority.

The reluctance of the university to explicitly define the types of statements and actions that attract punishment is perhaps evidence that universities themselves realize their own prima facie unreasonableness. It is overdue that the public comes to share the realization that institutional vigilantism is altogether incompatible with accessible higher education and the rights of the individual.

Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Jones v Tsige, 2012 ONCA 32.

Pridgen v University of Calgary, 2012 ABCA 139, 350 DLR (4th) 1.

Vivian Sim is a first year law student at Osgoode Hall Law School from Peterborough, Ontario who strongly associates justice with individual freedoms. She holds an HBSc in psychology, neuroscience & behaviour and a BA in political science from McMaster University. Her interests span from law to dragon boat, fitness, and nutrition.